DEADMAN v THE NEW ZEALAND POLICE [2021] NZHC 1406

DEADMAN v THE NEW ZEALAND POLICE [2021] NZHC 1406 [15 June 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2021-454-14[2021] NZHC 1406BETWEEN JOSEPH DEADMANAppellantAND THE NEW ZEALAND POLICERespondentHearing: 20 May 2021Counsel: G M Stone for the appellantG Carter for the respondentJudgment: 15 June 2021JUDGMENT OF CULL J[1] On 25 March 2021, Mr Deadman was sentenced to two and a half years'imprisonment for several charges occurring between 12 March 2020 and 2 January2021.1 These charges were:(a) 12 March 2020: excess breath alcohol (EBA) (third or subsequent);2(b) 15 July 2020: EBA (third or subsequent); and driving while disqualified(third or subsequent);3(c) 2 December 2020: driving while disqualified (third or subsequent);1 Police v Deadman [2021] NZDC 5424.2 Land Transport Act 1998, ss 56(1) and 56(4): maximum penalty two years' imprisonment or$6,000 fine.3 Sections 32(1)(a) and 32(4): maximum penalty two years' imprisonment or $6,000 fine.(d) 18 December 2020: wilful damage;4 and(e) 2 January 2021: threatening behaviour;5 and resisting police.6[2] Mr Deadman appeals his sentence. He submits that the total cumulativestarting point of three years' four months' (40 months) imprisonment was too high,and his sentence reached was manifestly excessive.Summary of Facts12 March 2020[3] At 2:20 am, Mr Deadman was found to have been driving with a breath alcohollevel of 781 micrograms of alcohol per litre of breath. He attempted to walk awayfrom the vehicle before being arrested. He told police he was not driving the vehicle.15 July 2020[4] At about 12 am, Mr Deadman was disturbing the occupants of a residentialaddress in Palmerston North. The police were called, he was spoken to, and told towalk home as he was a disqualified driver. He returned to the premises at 12:43 amand was asked to leave again. The appellant then drove away in his vehicle. Hesubsequently spotted police, stopped his vehicle and ran away. Police located him inPapaioea Park. He was found with an excess breath alcohol concentration of840 micrograms of alcohol per litre of breath. The appellant also told the police hehad not been driving and was running across the park to get home.2 December 2020[5] On 23 August 2020, Mr Deadman's minimum period of "indefinitedisqualification" lapsed. He had to apply for a zero alcohol licence, which he did notdo. On 2 December 2020, Mr Deadman drove a Ford motor vehicle west in the Foxton4 Summary Offences Act 1981, s 11(1)(a): maximum penalty two months' imprisonment or $2,000fine.5 Section 21(1)(a): maximum penalty three months' imprisonment or $2,000 fine.6 Section 23(a): maximum penalty three months' imprisonment or $2,000 fine.Beach Surf Club Carpark. Police stopped him, after receiving complaints frommembers of the public regarding his manner of driving.18 December 2020[6] Mr Deadman and his partner were staying at a Levin hotel when heaccidentally locked himself out of the hallway to his room. He kicked the lower glasspane, causing it to smash. He reached through the hole in the glass and opened thedoor to get into his room.2 January 2021[7] At 3.17 am Mr Deadman was inside his caravan. He was heard by neighboursmaking loud banging noises. The police were called. Mr Deadman refused to leavehis caravan or speak to police through a broken window. Eventually, the appellantgrabbed a butcher knife and threated the police that he would stab them if they enteredhis caravan.[8] Subsequently, the police opened Mr Deadman's caravan door with a specialtool. Mr Deadman was placed under arrest. The defendant made a comment to hispartner saying, "we should just go the police, we have two people, they're fourpeople." He then pulled away from the acting sergeant placing handcuffs on him andhad to be forcibly restrained.The District Court decision[9] The Judge started with an assessment of the appropriate starting point for thetwo excess breath alcohol charges.7 He considered that each standalone charge wouldtypically receive a starting point in the region of 18 months' imprisonment. HisHonour also considered the 15 July 2020 charge would require a further uplift for theJuly driving while disqualified charge. However, recognising that a resultingcumulative sentence of over three years' imprisonment for this offending would be7 For the 12 March 2020 and 15 July 2020 offending.excessive, the Judge reduced the cumulative starting point to two and a half years'imprisonment for those three charges.8[10] In respect of the December driving while disqualified charge, althoughtypically engaging a starting point of 12 months' imprisonment, the Judge consideredthat this would be excessive if added on to two and a half years' imprisonment.Accordingly, he imposed a cumulative six-month starting point for this offending. Hethen uplifted the starting point by four months to account for Mr Deadman'ssignificant criminal history in this area. The Judge calculated that Mr Deadman hasregularly been convicted for driving while disqualified or suspended since 1982,approximately 20 times,9 with 15 previous convictions for drinking and driving orrefusing blood. He noted that there was a significant gap in offending of this naturebetween 2001 and 2018, but in 2018 and 2019 Mr Deadman was convicted of furtherexcess breath alcohol offending of a "moderately serious" nature.10 Despiteacknowledging that this was an aggravating factor, the Judge did not wish to overstatethat and was cognisant of avoiding the risk of resentencing Mr Deadman again forthose matters.11[11] In summary, the starting point of 40 months' imprisonment comprised:(a) two and a half years (30 months) for the March 2020 and July 2020charges:(b) six months for standalone driving while disqualified charge on2 December 2020; and(c) a four-month uplift for significant criminal history in this area.[12] The Judge gave discounts totalling 25 per cent:(a) 15 per cent (six months) for Mr Deadman's guilty plea. The times atwhich guilty pleas were entered for each charge varied. Ultimately, theJudge concluded the 15 per cent discount awarded was "arguably8 Police v Deadman, above n 1, at [17].9 At [7]. This is in fact 28.10 At [8].11 At [19].generous" given the late nature of some of the pleas but was "preparedto accept it in the mix with the legitimate requirement to see throughlegal issues that needed to be dealt with."12(b) 10 per cent (four months) for personal circumstances, namely mentalhealth factors. The Judge acknowledged that Mr Deadman's mentalhealth issues could account for his repeated offending.13[13] The Judge did not accept Mr Deadman's expressions of remorse or hiswillingness to address alcoholism, stating that, due to his extensive criminal historyoffending in this way, expressions of remorse are easily made.14[14] In relation to the remaining charges (of intentional damage, threateningbehaviour and resisting police) concurrent sentences of one-month imprisonment foreach were imposed.15[15] The Judge considered the end sentence reflected the totality of the offending.16Accordingly, Mr Deadman was sentenced to two and a half years' (30 months')imprisonment, made up as follows:(a) 15 months' imprisonment for July 2020 drink driving, with a concurrentsentence of eight months' imprisonment for driving while disqualified;(b) Nine months' imprisonment for March 2020 drink driving, to be servedon a cumulative basis; and(c) Six months' imprisonment for driving while disqualified on2 December 2020, to be served on a cumulative basis.12 At [20].13 At [22].14 At [21].15 At [27].16 At [23].Approach to Appeal[16] This appeal is brought under s 250 of the Criminal Procedure Act. The Courtmust allow an appeal against sentence if satisfied that, for any reason, there is an errorin the sentence imposed on conviction and a different sentence should be imposed.17The focus is on the final sentence and whether that was in the available range, ratherthan the exact process by which it was reached.18 The Court will not intervene whenthe sentence is within the range that can be properly justified by accepting sentencingprinciples.19Parties positionsAppellant[17] Mr Stone for Mr Deadman submits that the cumulative starting point adoptedwas excessive. In particular, the Court's assessment that each EBA offence in isolationattracted an 18-month sentence of imprisonment was too high. He contends an overallstarting point of 30 months' (two years and six months) imprisonment for all chargeswas appropriate.Police[18] Ms Carter for the Police submits that the starting point was "arguably stern",but nonetheless was available to be imposed by the Judge. In any event, the Policesubmit the sentence was not manifestly excessive.[19] In relation to the excess breath alcohol charges, Ms Carter submits that whenapplying the Clotworthy factors, three aggravating factors are engaged, namely:(a) The appellant's recent and historic conviction history;(b) That the appellant faced two charges following (in quick succession)two recent convictions, for EBA offending, that being his 2018 and2019 convictions; and17 Criminal Procedure Act 2011, s 250(2).18 Ripia v R [2011] NZCA 101 at [15].19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].(c) That the appellant was disqualified at the time of one of the excessbreath alcohol incidents.[20] On that basis, Ms Carter says, the offending could fit into the second or thirdcategories identified in Samson, with a starting point between 12–18 or 18–20 months'imprisonment. Although the Clotworthy factors take history for offending intoaccount when setting a starting point, which could lead to a risk of double counting,she submits the sentencing Judge was cognisant of this issue and was careful to notehe was not re-sentencing for past offending. When assessed in the context of thisoffending, the Police submit that the four-month uplift imposed was not unreasonable.Analysis[21] Sentencing for multiple offences, particularly historic and repeat EBA anddisqualified driving offences, is a difficult task, particularly in a busy list Court. Thereare no guideline judgments for excess breath alcohol offending but there are twodecisions which are helpful. In Clotworthy v Police, Wild J identified a number ofaggravating and mitigating factors which are relevant to sentencing. They are:20(a) The breath or blood alcohol level;(b) The length of time that had elapsed since last drink driving conviction;(c) Convictions for two or more drink driving offences in close succession;(d) Whether the manner of driving was innocuous or dangerous, oraccident or injury resulted from such;(e) Whether the offender was disqualified;(f) The pleas, and if guilty, whether the plea was timely or not;(g) The sentences imposed for previous EBA convictions and the response(or lack of it) to those sentences;(h) The offender's record, if any, of convictions for other types ofoffending;(i) Genuine remorse or willingness to confront his/her contributing alcoholor personal problems; and(j) Any mitigating personal or family circumstances.20 Clotworthy v Police (2003) 20 CRNZ 439 (HC) at [20].[22] In Samson v Police, Whata J considered that from this list, [a]–[e] areaggravating factors for the purpose of assessing the start point for the offending; [g]and [h] are relevant to uplift for aggravating personal circumstances; and [f] and [i]–[j] are mitigating factors.21 Whata J also helpfully identified a guiding range of startingpoints for third or subsequent excess breath alcohol offences:22(a) only moderately aggravating factors: 9–12 months' imprisonment;(b) one or more seriously aggravating factors: 12–18 months'imprisonment;(c) multiple offences with seriously aggravating factors: 18–20 months'imprisonment; and(d) multiple offences with very serious aggravating factors (offending ofthe worst kind): 20–24 months.[23] For the seriously aggravating factors, Whata J identified those as follows:23(a) A high level of intoxication;(b) Dangerous driving;(c) Very close proximity in previous EBA offending; and(d) Prolonged and continuous history of driving related offending.[24] One of two approaches can be adopted to calculate the appropriate overallsentence for a range of different offences. The Judge can calculate the sentence foreach offence on a concurrent basis. That means the Judge allocates a length ofsentence for the most serious offence and then adds an uplift for the other convictionsbeing dealt with in concurrent sentences.[25] Alternatively, the Judge can calculate a separate stand-alone sentence for eachof the convictions, on the basis that they would be served cumulatively. Whichever21 Samson v Police [2015] NZHC 748 at [14].22 At [15].23 At [16].method is used, the Judge must stand back at the end of the calculation and apply thetotality principle. That is to make sure that the total length of the sentence imposed isproportionate to the overall criminality involved in the offending.[26] The Judge here commenced with a calculation of cumulative sentences for thetwo EBA charges and driving while disqualified charge totalling 36 months. He thenlooked at the totality of that offending and reduced this by six months. He went on toconsider a discrete sentence of 12 months for the further driving while disqualifiedcharge, assessed this in totality and reduced this to six months cumulative on the EBAstarting point. The Judge uplifted this by four months to account for Mr Deadman'scriminal history. He then considered totality of the offending again, material to hisdecision to impose concurrent sentences of one month imprisonment each for the otherminor offending.[27] If each EBA charge is looked at in isolation, it is correct that they would fallinto the second category of EBA offending identified in Samson and warrant a startingpoint in the range of 12–18 months each. While Mr Deadman's breath alcohol levelwas only moderately aggravating, his significant history of drink-driving and drivingwhile disqualified, and the close proximity of this offending to recent convictions forthe same offending are all seriously aggravating features.24 The July 2020 offendinghad a further seriously aggravating factor in that Mr Deadman was driving whiledisqualified at the time.[28] However, it is important that the end-sentence is not disproportionate. Inreviewing the categories in Samson, I consider Mr Deadman's offending falls withinthe third category, being multiple offences with seriously aggravating factors. I notethat in Samson, Whata J initially conceptualises a history of EBA and other offendingas features relevant to uplift for personal aggravating circumstances.25 However, in24 In Samson, above n 21, the indefinite disqualification of the defendant at the time of the excessbreath alcohol offence and the fact the defendant had been disqualified on eight previous occasionswere regarded as seriously aggravating factors. In Koopu v Police [2013] NZHC 1356, theHigh Court upheld a 16-month starting point for excess breath alcohol offending where it was theappellants seventh drink driving offence. In Sands v Police [2018] NZHC 3048, the defendanthad 12 previous convictions for drink driving. He was approached by police after revving hisengine for five minutes and had excess breath alcohol of 1025 micrograms per litre of breath. Onappeal, the Judge considered a starting point of 18 months was appropriate for this offending.25 Samson, above n 21, at [14].practice, and in the analysis of that case, the courts have considered this as a seriouslyaggravating feature.26 For clarity, I consider this is the correct approach. Thesentencing range identified by Whata J as appropriate for cases in the third category is18–20 months.[29] I note that the third category only exceeds the sentence an offender may receivefor a single EBA offence with seriously aggravating factors by two months. However,I consider that it is consistent with the principles of the Sentencing Act, namely thatthe Court must consider the seriousness of the type of offences in comparison withother types of offences and be proportionate.27 There is a risk, in sentencing multipleEBA offences discretely and cumulatively, that the starting point reached willultimately be disproportionate to starting points for more serious types of offendingand this has occurred here, in my view. I consider the 30-month starting point for EBAoffending adopted by the Judge was too high. A 20-month starting point for the EBAcharges, being the highest end of the range for offending in this third category, isappropriate, considering Mr Deadman's serious and significant history of drink-driving and driving while disqualified.[30] I also accept Mr Stone's submission that the additional four-month upliftimposed for Mr Deadman's criminal history amounted to double-counting, as this isalready included as a factor within the 20-month starting point for multiple or repeatEBA offences. When imposing the sentence on Mr Deadman, the Judge did not referto this uplift. It appears to have been amalgamated into the sentences for EBAoffending and the standalone driving while disqualified charge, increasing each by twomonths (before applying discounts).28 In terms of the EBA offending alone, this bringsthe cumulative starting point assessed by the Judge to 32 months; twelve months morethan I consider to be appropriate in the circumstances.26 At [18]. See also Sands v Police, above n 24; and Koopu v Police, above n 24.27 Sentencing Act 2002, s 8(b).28 I reach this conclusion as taking a 25 per cent discount from a 32 (30 + 2) month starting pointresults in a 24 month sentence of imprisonment (being the total end sentence for both EBAcharges), and taking a 25 per cent discount from an eight (6 + 2) month starting point results inthe end six month sentence imposed for the December driving while disqualified charge. Withoutadding a two-month uplift to the standalone driving while disqualified charge, the Judge imposedthe same starting point and end sentence for this offending.[31] However, the six-month cumulative sentence imposed for Mr Deadman'sstandalone driving while disqualified charge, was appropriate and should be imposed,in addition to the 20-month starting point for EBA offending, which is within therange. It is also appropriate to impose sentences for the three remaining charges on acumulative basis on top of the now calculated 26-month starting point forMr Deadman's EBA and disqualified driving charges. Cumulative sentences areappropriate where the offences for which an offender is being sentenced are differentin kind and not part of a connected series of offences.29 A further one month for wilfuldamage, one month for resisting police and one month for threatening behaviour is tobe imposed on a cumulative basis.Conclusion[32] I therefore quash the sentence of 30 months' imprisonment. I adopt a startingpoint of 20 months' imprisonment for the March and July EBA and disqualifieddriving charges, with an additional six months for the further disqualification inDecember 2020; and one month each for wilful damage, resisting police andthreatening behaviour, which brings the starting point in totality to 29 months. Thediscount of 25 per cent was warranted, which brings this to a sentence of 22 months'imprisonment.[33] While this converts Mr Deadman's sentence to a short-term sentence ofimprisonment, a sentence of home detention is not appropriate.30 I note thatMr Deadman's partner refused to provide the Department of Corrections with anaddress at which a sentence of home detention could be served. I am satisfied asentence of imprisonment is the least restrictive outcome appropriate in thecircumstances.Result[34] The appeal is allowed. I quash Mr Deadman's sentence of two and a half years'(30 months) imprisonment.29 Sentencing Act 2002, s 84(1).30 Section 15A(1); Parole Act 2002, s 4.[35] I substitute a sentence of 22 months' imprisonment. The alcohol interlocksentence and disqualification from driving imposed remain.Cull JSolicitors:Winter Woods Lawyers, Palmerston North for the appellantBVA, Palmerston North for the respondent